Copyright

A copyright is an IP right. The U.S. Constitution establishes federal copyright protection. The first federal copyright law was established in 1790, and the most recent version of federal copyright law was the 1976 Copyright Act.⁴³ Copyright is protected under federal law; states are preempted from creating their own copyright laws.

The holder of a copyright has the exclusive right to do anything with the copyrighted work. The holder is the only one who can reproduce, perform, or sell the work. Copyright holders also have the power to keep others from using their copyrighted material.

Almost anything can be copyrighted. You need to remember that most materials posted to the internet are protected by copyright. In addition, most informational and advertising materials posted on websites by businesses and organizations are subject to copyright. Blog posts and personal websites also are protected. When reposting information that you find on the internet, you need to make sure that you do not violate the owner’s copyright.

Sometimes copyrighted materials are marked with an uppercase “C” in an enclosed circle or ©. The law does not require this. Even if the material is not marked, it may be copyrighted.

Copyright Basics

A copyright is used to protect almost any creative endeavor (called a “work”), such as books, art, music, videos, computer programs, and any other creative work. Works that can be copyrighted include:

• Literary works—This includes novels, newspapers, textbooks, and computer software.
• Musical works—This includes songs, scores for musicals, and jingles.
• Dramatic works—This includes plays, skits, monologues, and any music that might be included in the dramatic work.
• Pantomimes and choreographic works—This includes ballets or other expressions of dance. It also includes mime shows.
• Pictorial, graphic, and sculptural works—This includes photographs, sculptures, fine art, and cartoons.
• Motion picture and audiovisual works—This includes movies and television shows.
• Sound recordings—This includes recordings of music, sound, and words.
• Architectural works—This includes building designs, blueprints, and drawings.

The categories are very broad. A work of authorship might be properly copyrighted in several different categories. For example, the advertising and information material that an organization posts on its website can be copyrighted as a literary work. Pictures on the website can be copyrighted as a pictorial or graphic work.

Federal law grants copyright protection to “an original work of authorship fixed in any tangible medium of expression.”⁴⁴ To be eligible for copyright protection, a work must be both original and in a fixed form.

A work is original if it is not copied from another source. If a work is not original, it is not eligible for copyright. Works that are created completely from publicly known facts, with no other original material, are not copyrightable.

Unlike an invention or discovery that is patentable, copyrighted works do not have to be new or novel. They also do not have to be good or aesthetically pleasing. They simply have to be an author’s original expression of an idea.

Copyright protection does not extend to mere ideas on their own. Instead, these ideas must be written down or put in a fixed format. This is why books are entitled to copyright protection, but ideas that are simply in the head of the author are not. Copyright also is not available for useful articles. Patents, however, may protect these types of articles, which can include clothing, furniture, machinery, and other items.

Works that are in the public domain also are not copyrightable. The public domain refers to the body of works that are free for public use. This includes works where the copyright has expired, as well as works of the U.S. government such as the United States Code. It is important for you to remember that information that is available on the internet is not necessarily in the public domain.

Copyright protection arises as soon as an original work is created in a fixed form. An author does not have to do anything to gain this protection. Instead, it arises as a matter of law. An author is not required to register a work to get copyright protection. Writers do not have to mark their work to get copyright protection.

The owner of a copyright has the exclusive right to do anything with the copyrighted work. Subject to only a few exceptions, only the copyright owner can reproduce, perform, or sell the work.⁴⁵ Copyright owners also have the power to allow others to use their copyrighted material by using a special kind of contract called a license. The law gives copyright holders the following broad rights:

• To reproduce the copyrighted work
• To prepare derivative works based upon the copyrighted work
• To distribute copies or phonorecords of the copyrighted work to the public
• To publicly perform the copyrighted work
• To publicly display the copyrighted work

Copyright owners also have the power to keep others from using their copyrighted material. It is important to understand who the owner of a copyright is. Often the owner of a copyright is the person who created the original work. This is not always the case, however. For example, when an employee creates work for his or her employer, the employer typically is the owner of the copyright. Copyright law calls this situation a “work made for hire” (WFH).

Other than in the employer/employee context, a WFH must be reflected in a written document. This document shows that a person has specifically commissioned a WFH. The document also reflects that the author agrees to work on a WFH and that copyright belongs to the person who commissioned the work. The following items are common works for hire:⁴⁶

• A contribution to a collective work
• A part of a motion picture or other audiovisual work
• A translation
• A supplementary work
• A compilation
• An instructional text
• A test and answer material for a test
• An atlas

The length of copyright protection is determined through ownership. For original works created after January 1, 1978, a copyright lasts for the length of the author’s life plus 70 years after the author’s death. If two or more authors prepare a work, the 70-year period does not begin to run out until after the last author’s death. For WFH, a copyright lasts for 95 years from the publication of the work. In limited cases protection also could extend for 120 years from the creation of the work. Whichever period is shorter is the proper term.⁴⁷

Copyright Registration

Copyright protection arises automatically as soon as an original work of authorship is fixed. An author is not required to register a work to get protection. However, there are many reasons why an author may choose to register for copyright protection. The main reason for a person to register a copyright is so that the copyright can be enforced. An author who created a work in the United States may not file a lawsuit for copyright infringement without first registering the copyright with the U.S. Copyright Office.⁴⁸

The law creates several other reasons to register a copyright. Registration creates a public record of the copyright. In addition, if a copyright is registered within 5 years of publication, it creates a presumption of valid ownership.⁴⁹ This means a copyright is presumed to be valid, and the person challenging it must present proof that it is invalid.

An author must submit copyright registration to the U.S. Copyright Office, which accepts both paper and electronic registration applications. It reports that it takes on average 3 months to process electronic applications, whereas it takes 6 months on average to process paper-based applications.⁵⁰

A person registers a work by submitting an application and a copy of the work. The applicant also must pay a fee. The only way to register a copyright is with the U.S. Copyright Office. Some people believe that mailing a copy of their work to themselves via U.S. mail is copyright registration or proof of ownership in the work. This is sometimes called a poor man’s copyright. However, this is not a valid way to register a copyright. To repeat: The only way to register a copyright in the United States is with the U.S. Copyright Office.⁵¹

Infringement and Remedies

Copyright holders have exclusive rights in the work that they create. These rights arise when the work is created and continue for the length of the copyright. The federal government does not enforce copyrights. Authors must enforce their own rights and can sue people who infringe on their copyright. Liability for infringement is based upon strict liability. A copyright owner can hold an infringer liable for violating a copyright even if the infringement was not intentional.

To pursue an action for copyright infringement, a plaintiff must prove ownership of the copyright. The plaintiff also must show that the defendant has infringed on that copyright. A plaintiff usually proves ownership of a copyright by showing a copyright registration as proof of the validity of the copyright.

Copyright infringement cases are very rarely simple cases of a defendant directly copying a plaintiff’s work. To show that there has been an unauthorized reproduction, the plaintiff must show that the defendant had access to the copyrighted work. However, access to the copyrighted work alone is not enough to prove infringement. The plaintiff also must show that the plaintiff’s and defendant’s works are substantially similar.

One of the most common tests used to determine substantial similarity is “whether a lay observer would consider the works as a whole substantially similar to one another.”⁵³ This is a fact-intensive inquiry. The court will look at all the ways in which the two works are similar. If the two works are substantially similar, then copyright infringement has occurred.

Remedies for copyright infringement are similar to remedies for infringements of other IP rights. A court can issue an injunction, which stops the infringer from violating the copyright holder’s rights. A court also can order a defendant to pay damages for violating a plaintiff’s copyright. A defendant also may be liable for statutory damages under copyright law. These damages are higher for willful copyright infringement.⁵⁴

The most common way for a defendant to defend against a copyright infringement case is to argue that the plaintiff’s work is not original. A defendant also can present facts that the works are not substantially similar. Another defense in a copyright infringement case is that the use of the copyrighted work is allowed under the fair use doctrine.

FYI

Fair Use

A copyright holder has a large number of rights in his or her original work. The scope of these rights is to encourage artistic expression. However, there are some limitations on a copyright holder’s exclusive rights. These limitations are a defense to copyright infringement. Fair use is one of the most common limitations.

The law states that fair use of a copyrighted work is not copyright infringement.⁵⁵ The law lists several examples of fair use. Fair use is permitted in these situations to promote free speech. The examples include uses for:

• Criticism
• Comment
• News reporting
• Teaching (including multiple copies for classroom use)
• Scholarship
• Research

If portions of a copyrighted work are used for these purposes, then a defendant might have a defense against an owner’s claim of copyright infringement.

The law also lists several technology-neutral factors that should be considered in determining whether a use should be considered fair use. They can be used to analyze the use of any type of creative work. The factors are:⁵⁶

• The purpose and character of the use—A use for nonprofit, educational, or comment purposes tends to favor fair use. A use that is for commercial or profit purposes tends to weigh against fair use.
• The nature of the copyrighted work—The more creative a work is, the more protection it will be afforded. Fair use tends to favor the use of facts and not the creative expression of an idea.
• The amount and substantiality of the work used—Use of a small amount of a copyrighted work tends to favor fair use. However, the use of a small part of a work that encompasses the substantial idea in that work weighs against fair use.
• The effect of the use upon the potential market—A use that has no effect on a potential market for a work tends to weigh in favor of fair use. A use of a work that has a major effect on the market is less likely to be considered fair use.

Courts weigh these factors against one another to determine whether the use of a copyrighted work is fair use. If fair use is indicated, it may be a defense to a copyright infringement claim. Fair use cases are very difficult to decide. Courts must engage in a very detailed analysis to determine fair use.

In 2009, the Second Circuit Court of Appeals reviewed a fair use case.⁵⁷ In that case, a book publisher created an illustrated biography about the history of the Grateful Dead rock band. As part of the book, it included pictures of concert posters. The plaintiff owned the copyrights to the posters and sued the book publisher for copyright infringement.

The defendant argued that its use of the posters was allowed under the fair use doctrine. In reviewing the case, the Second Circuit held that the use of the copyrighted posters was fair use. It said that the use did not exploit the copyrighted works, but was instead transformative. This means that the purpose and character of the use were different from the original use of the copyrighted works. The posters were greatly reduced in size and used to commemorate events in the band’s history in a biographical fashion. As such, the use was different from the original use of the posters and could properly be considered fair use.